Reason and American scripture

The first to plead his case seems right, Until another comes and examines him.
– Proverbs 18:17 (RSV)

Here’s a question for those of us who discover in our nation’s founding a covenant-based civil religion1: Could the U.S. Constitution be a primary source of virtue for our civic life, much as the Bible is for Christians?

From our bedroom this morning

One of my favorite verses about the relationship between text and virtue is from one of Paul’s letters to Timothy, in which he refers to what Christians now call the Old Testament:

All scripture is given by inspiration of God, and is profitable for doctrine, for reproof, for correction, for instruction in righteousness: that the man of God may be perfect, throughly furnished unto all good works. (2 Timothy 3:16 – 17, KJV)

Scripture leads to correction and instruction, which in turn leads to maturity. Can civil scripture do the same in our civil life?

Two New England Federalists came to different conclusions. Timothy Dwight believed that constitutions and their ilk cannot foster virtue:

The formation and establishment of knowledge and virtue in the citizens of a Community will more easily and more effectually establish order, and secure liberty, than all the checks, balances and penalties, which have been devised by man.

Dwight, a Congregationalist minister and later a Yale president, took a position similar to Jonathan Mayhew’s before him, according to Philip Gorski’s American Covenant: A History of Civil Religion from the Puritans to the Present. Gorski’s summary: Mayhew and Dwight “believed that the endurance of a republic depended more on public virtue than on institutional design” (71). While both are important to a republic’s health, public virtue is separate from institutional design, and if Dwight would have had to have picked one, he would’ve picked the former.

John Adams, though, believed that institutional design fosters public virtue. In his 1787, three-volume book A Defence of the Constitutions of Government of the United States of America, Adams made out this causal relationship:

The best republics will be virtuous, and have been so; but we may hazard a conjecture, that he virtues have been the effect of the well-ordered constitution, rather than the cause.

Adams wrote before the U.S. Constitution has been drafted or ratified, but Madison agreed with his faith in the then-proposed U.S. Constitution’s instructive powers. In Federalist No. 49, Madison implied that the Constitution, if adopted, would begin to frame public debate and, in the process, inform it.

Madison wrote No. 49 in response to those who advocated that any argument between branches of government be resolved by the direct intervention of the people. In many such anticipated questions, Madison said, the multitude would be more influenced by the combatants than by the Constitution’s provisions, and the constitutional question “could never be expected to turn on the true merits of the question.” The nature of good republican government, by contrast, is to increase the chances that reason would override passion. Madison summarized the outcome of a direct appeal to the people:

The passions, therefore, not the reason, of the public would sit in judgment. But it is the reason, alone of the public, that ought to control and regulate the government. The passions out to be controlled and regulated by the government. [Emphasis original]

Charles Kesler understands Madison’s position in No. 49 as placing the Constitution as mediator between the public’s passion and its reason:

So the reason of the public controls the government, which in turn regulates the public’s passions. Notice that this is not a formula for the direct rule of reason over passion in politics. It calls rather for the reason “of the public” to control the passions through the mediation of the government. The direct rule of reason over passion in politics might be said to dictate the suppression of rights and freedom in the name of duties or virtues. Publius does not endorse this, but neither does he allow rights to sink to their lowest common dominator, to become expressions of mere self-interest or passion. Instead, he calls for the “reason of the public” to become responsible for the passions of the public. He defends a form of government that will encourage rights to be claimed and exercised responsibly. The Federalist‘s concern for veneration fo the Constitution shows that a purely calculative or self-interested attachment to government is not sufficient to secure republicanism. The Constitution must attract the loyalty, admiration, pride, and even reverence of American citizens if the rule of law is to be firmly grounded — if republicanism is to be responsible.2

The Constitution, then, was constructed in part to teach civic virtue by permitting the rule of reason and the subjugation of passion. But how does this happen?

I’m no longer a rationalist, at least as Jonathan Haidt uses the term: “anyone who believes that reasoning is the most important and reliable way to obtain moral knowledge.”3 Haidt has persuaded me that my reason is mostly a construct to justify myself or my intuitions to others.

But Haidt acknowledges that reason is essential in public bodies:

I’m not saying we should all stop reasoning and go with our gut feelings. Gut feelings are sometimes better guides than resigning for making consumer choices and interpersonal judgments, but they are often disastrous as a basis for public policy, science, and law. Rather, what I’m saying is that we must be wary of an individual’s ability to reason. [Emphasis original]4

Madison, I think, would have agreed with Haidt. In the same Federalist 49, he wrote that “The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. ” [Emphasis original] As Haidt points out, however, to be able to reason with one another presumes that we are in relationships that are conducive to listening to one another.

John Marshall’s Supreme Court represents such a relationship. For most of twenty-nine years, this Federalist chief justice worked with the appointees from mostly Republican presidents bent on reshaping the court’s outlook. These presidents largely failed. As Jean Edward Smith points out in John Marshall: Definer of a Nation, most of the court’s opinions during most of Marshall’s tenure were unanimous. Smith attributes this frequent unanimity to Marshall’s insistence that the justices live and take their meals together.5 The justices were, therefore, forced to recognize their political opponents’ humanity. In many cases, they ended up liking their opponents and got used to reasoning with them to come up with thoughtful opinions that probably would have eluded the pens of justices acting alone.

The Constitution and other American covenants, such as the Declaration of Independence, can still frame our debates and teach civic virtue, but only in the context of a civic body. Civic virtue through our Constitution and laws requires a polity, just as spiritual growth through scripture requires a church. Without a greater body, our timid reason will remain the mere instrument of our passion, and each of us will stay walled up in his political ghetto, uncritically absorbing his political ghetto’s version of the news.

  1. I’ve been examining our covenant-based civil religion. I’ve written elsewhere about how Lincoln spoke of the Constitution as part of a civic/sacred text. It’s a flawed text, Lincoln believed, and it would be superseded (or “fulfilled”) in certain places by the Civil War Amendments after Lincoln’s death, much as the Mosaic covenant is said to be fulfilled in Christ.
  2. Charles R. Kesler’s introduction to the Signet Classic edition of The Federalist Papers, at xxix – xxx.
  3. Jonathan Haidt, The Righteous Mind: Why Good People Are Divided by Politics and Religion, page 7.
  4. Kindle loc. 1632.
  5. Page 507.

A framework for political moderation

I had an epistrophe! Or Lincoln did, I guess, in his Gettysburg Address, but I amplified it.

I’ve been searching for a foundation for modern American democracy that tries to solve problems out of expediency with piecemeal legislation. Such a government would be aware of how such legislation might fit into more strident political systems, but it would be confident enough in its own philosophical foundation to not be overly concerned about it. It would have enough self-knowledge – enough philosophical bottom, if you will – to distinguish itself from oligarchies, plutocracies, autocracies, and socialist states. It would have enough internal coherence to project a kind of moderation that seeks compromise but isn’t defined by it. It wouldn’t be easily caricatured as a worried peacemaker, a candidate for an Al-Anon program, brought up in a family of raging political alcoholics. Instead, this philosophy’s moderation would be as principled as the extremes’ philosophies, but its principles would be better.

My way of thinking about the elements of such a moderate philosophy of democracy is Lincoln’s famous epistrophe from the Gettysburg Address: “government of the people, by the people, for the people.” I use these three different prepositions to outline the parameters of an American political philosophy of moderation.

Of the people,” I think, requires a philosophy that understands government as being part of the people, an expression of the people and proof of its ability to govern itself. The left-wing, anti-government creeds of the French Revolution and of Marxism, now unwittingly co-opted in part by much of the American Right, is a fantasy never realized by any Western nation. Both the French Revolution and Marxism envisaged a state in which government would become unnecessary. I think that’s heaven on earth – the state, as Madison might have put it, when men become angels. Even when a particular government is the enemy, as we claimed the English crown was in 1776, government itself is not inherently an enemy. The government, as Pogo might have put it, is us.

One can see the impulse to associate the people and the government most strongly in New England’s early approach to government. Colin Woodard in his book American Nations: A History of the Eleven Rival Regional Cultures of North America summarizes it here:

Yankees would come to have faith in government to a degree incomprehensible to people of the other American nations. Government, New Englanders believed from the beginning, could defend the public good from the selfish machinations of moneyed interests. It could enforce morals through the prohibition or regulation of undesirable activities. It could create a better society through public spending on infrastructure and schools. (Kindle Locations 999-1004)

I assign “of the people” to an understanding of government as a positive, collective activity, as an authoritative expression of the community.

By the people” seems to accept a distinction between the government and the people not suggested by “of the people.” “By the people” requires a responsive government perhaps most thoroughly expressed by the antifederalists. Their concern about the size of the federal government, their insistence on a written bill of rights, and their desire for term limits reflect a belief in a personal government. The antifederalists of the 1780’s wanted to look at the federal government and see servants doing the people’s will. “By the people,” understood in this light, hates the inhuman and unresponsive bureaucracy associated with big government. It hates the idea of lobbyists and of any person or organization having purchased a special place in the government. It hates “crony capitalism,” for instance, a controversy that made the front page of today’s Washington Post. The antifederalists before them feared that the new Constitution “did not manage to secure the government against the danger of minority faction – tyranny by one man, or a few men, of enterprise, ambition, and wealth,” as Charles R. Kessler put it in his brilliant introduction to the Signet Classic edition of The Federalist Papers. The Tea Party – a kind of small-government, populist movement – may come closest today to my version of “by the people.”

3PictureModerateGovtEpistrophe

For the people” may, on the surface, seem diametrically opposed to my version of “by the people.” Instead of following “by the people”’s focus on a merely responsive government, “for the people” focuses foremost on a responsible government. This emphasis is perhaps most thoroughly expressed by the federalists of the 1780’s. Kessler first made this distinction between responsive and responsible government to sharpen an analysis of the federalist-antifederalist debate during the ratification years. He summarizes it in his introduction to the The Federalist Papers:

If republican government is to be responsible, it must be responsive to the people and answerable to their will. But if it is to be responsible in the more positive sense, it must go beyond mere responsiveness and be able to serve the people’s true interests or their reasonable will, even if this course of conduct is not immediately popular. (xxii)

The federalists believed that not every expression of the people’s will amounted to their reasonable will. Jefferson expresses it this way: “Independence can be trusted nowhere but in the people in mass. They are inherently independent of all but moral law.” Jefferson’s “moral law” is synonymous with “natural law,” an egalitarian version of classical natural law that Locke more than anyone made accessible to the Framers. The qualification of the people’s will by “moral law” and “natural law” means that the parameters of the popular will was restricted by reason. Edward J. Erler, in his introduction to Harry V. Jaffa’s Storm Over the Constitution, expresses it this way: “In egalitarian natural right, consent necessarily takes precedence. It is the task of constitutional government – and the rule of law – to insure that consent is not merely the expression of the people’s will but of their rationality” (xxiv). Of course, Martin Luther King’s appeal to these concepts of reason and natural law allowed him to justify his actions in Birmingham. He and his followers, he claimed, were justified in violating an unjust law.

The emphasis I find in “for the people” on a government’s responsibility therefore protects a minority from the majority’s tyranny, a chief concern of James Madison in drafting the Constitution. A government “for the people,” then, protects all of its people, even those who frustrate the majority’s will. It may pass legislation to protect the rights of certain minorities or to expand the participation by certain classes of people in the nation’s government and society.

There are certain overlaps.Of the people” and “by the people” both emphasize a popular government and eschew moneyed interests. “By the people” and “for the people” both emphasize individual rights. “For the people” and “of the people” both emphasize the natural authority of government.

A moderate philosophy of democracy would legitimize the three impulses I define with the Gettysburg Address’s epistrophe, and it would seek to balance each impulse with the other two. Because “of the people, by the people, for the people,” as I’ve amplified each, stand in some opposition to one another, no political party alone could champion the entire philosophy. But such a philosophy might permit us to talk to one another, and even to learn from one another, again.

I’ve found writings involving what might be considered building blocks for some principled, moderate, democratic philosophies, and I hope to blog about them sometime soon.

Antidisestablishmentarianism

[The English people] do not consider their church establishment as convenient, but as essential to their state, not as a thing heterogeneous and separable, something added for accommodation, what they may either keep or lay aside according to their temporary ideas of convenience. They consider it as the foundation of their whole constitution, with which, and with every part of which, it holds an indissoluble union. Church and state are ideas inseparable in their minds, and scarcely is the one ever mentioned without mentioning the other.

– Edmund Burke, Reflections on the Revolution in France

3PictureFrenchRevolutionJust thinking out loud here. I won’t use any sources other than what I’ve been reading or what I remember having read. With that confession of ignorance, I give myself permission to write, even though I’m giving my subject short shrift.

What has been the effect of the First Amendment’s Establishment Clause (i.e., “Congress shall make no law respecting an establishment of religion . . .”)? Is there any downside to not having a state-sponsored religion? Suppose we had tolerance – say, perfect tolerance – for dissenters based on a well-administered Free Exercise Clause (i.e., “. . . or prohibiting the free exercise thereof”). What would the further addition of a state-sponsored religion get us?

I’m currently reading nothing on the Establishment Clause or on the English Civil War, that poignant fulcrum for English and American church-state issues. Instead, I’m reading Burke’s Reflections on the Revolution in France and Joyce Appleby’s book Liberalism and Republicanism in the Historical Imagination. One of Burke’s arguments against the French Revolution, however, is also an argument against some of his English contemporaries who wanted to disestablish the Anglican Church.

Edmund Burke’s vision of society and the state was typical of Whigs in his day, J. G. A. Pocock states in his thoughtful introduction to Reflections. Burke thought that society and the state needed an established church. Society needed an established church because society needed order and manners. Pocock summarizes Burke’s view on the social order:

The social order in his mind was natural; it was an alliance between heaven and earth; and property . . . was the means by which the human actor assumed a place in this natural, but also dynamic and historical, order (Kindle location 602).

The confiscation of church property in France for collateral for the nation’s debt shook Burke. If the church didn’t own property, the church wasn’t a player.

Within this alliance of heaven and earth, the clergy nourished manners, and manners, Burke and his fellow Whigs believed, were the modern equivalent of the virtue of Greek and Roman antiquity and the outcome of medieval chivalry. Manners, Whigs also believed, were necessary for an economy that relied more and more on commerce.

The state, on the other hand, needed an established church in order to maintain its sacred character. Eighteenth century English Whigs felt the established church legitimized the state in the sight of a religious polity:

The separation of church and state would mean that the sacred character of the latter had no ecclesiastical or institutional expression, and could be affirmed only by such undenominational religion as men were able to agree on, irrespective of church membership or doctrinal belief; in the words sometimes ascribed to President Eisenhower, society would be based on a fundamental religious faith, but it wouldn’t matter what it was (Kindle location 414).

Eisenhower’s exact words (though the quote is arguably apocryphal, and I’m not allowing myself to Google it) are, according to Pocock, “Our society makes no sense unless it’s founded on a fundamental religious faith, and I don’t care what it is.” I don’t think Eisenhower was an antidisestablishmentarianist, though I confess I know little about him. But I do think he was onto something.

Because we have no established church, we’ve had to scramble. James Madison’s elaborate checks and balances, three branches, and bicameral Congress were designed in part to win America’s respect for the new Constitution, according to Charles R. Kessler in his excellent introduction to The Federalist Papers:

The Federalist’s concern for veneration of the Constitution shows that a purely calculative or self-interested attachment to government is not sufficient to secure republicanism. The Constitution must attract the loyalty, admiration, pride, and even reverence of American citizens if the rule of law is to be firmly grounded – if republicanism is to be responsible (xxx).

Reverence for government is tough, Burke would say, when the first amendment to your constitution doesn’t permit its government to establish a religion.

The need for a religious cast for American government persisted. Lincoln’s famous 1848 Lyceum speech advocated a “political religion,” a notion that grew from mere adherence to laws in 1848 to include sacrifice and redemption in Lincoln’s 1863 Gettysburg Address and in his 1865 Second Inaugural Address.

It’s ironic that Lincoln’s narrative of American history includes redemption. In Burke’s time, advocates in England who wanted a church-state separation based their thinking on Locke’s “theory of natural rights which made no appeal to a theology of redemption” (Pocock, Kindle location 427). Yet Lincoln was a Lockean liberal.

Lockean natural rights theory is itself a civil religion and one well suited to America, which has largely rejected Pilgrim and Puritan notions of the community’s primacy in favor of the individual. Locke’s state of nature starts not with society but with an individual, a child of God, much like Adam in the Garden of Eden. Appleby captures the religious appeal of natural law for the generation between Madison and Lincoln:

During these same years evangelical Protestants successfully propagated an individualistic Christian message that challenged much of Calvinist orthodoxy. They compared liberation from sin to liberation from tyranny as a kind of individual empowerment, thus providing a Christian foundation for the civil religion forming around natural rights (4).

But evangelical Christians in our own day have lost sight of natural law. In a related development, their relation to the federal government has become fundamentally antagonistic. America to many evangelicals is like the Roman Empire before Constantine – before it made Christianity its official religion. But we’re also a democracy in which over ninety percent of the population believes in a monotheistic God. Consequently, our politicians rarely throw Christians to the lions.

Instead, many evangelicals speak of a war on Christmas, pointing to courts that order local governments to take crèches down from courthouse lawns. We have claims of anti-religious acts when the I.R.S. denies a religious organization tax-exempt status. Every now and then – most recently a federal district judge’s decision in Wisconsin – someone threatens the I.R.S. housing allowance under which a minister is allowed not to report as taxable income any money he or she uses to pay a mortgage on and to otherwise maintain a residence. As I recall, these challenges end up with Congress reaffirming this sweet tax break in almost unanimous votes.

It must be noted that questioning a tax break for clergy is a good deal less tyrannical than confiscating all church property, as happened soon after the outset of the French Revolution. Certainly, some evangelicals see Free Exercise Clause issues where some courts see Establishment Clause issues. But why are these evangelicals so vociferous in their denunciation of the federal government, so adamant that the government is out to destroy their faith, even though the same government gives clergy and nonprofits special tax breaks? I think Madison, Kessler, Lincoln, and Eisenhower point to the answer.

Many evangelicals would have more respect for the federal government if it were to revoke the Establishment Clause and adopt a religion, like England. I think this desire to revere government, as Kessler might put it, underlies, for instance, many evangelicals’ claim that we are a “Christian nation.” An acceptance of the Christian nation theory would take at least some teeth out of the Establishment Clause. After all, why would evangelicals make this historical argument if its acceptance wouldn’t be a kind of guide to political action?

America’s Christians would be better off taking a hard look at Locke, who in the past has served as a means of unifying Christians and the rest of Americans in a common understanding of government. Non-Christians and unorthodox Christians – Unitarians and Deists – in Burke’s England and in Revolutionary America who wanted to separate church and state were Locke’s followers, but so were Lincoln and many participants in the Second Great Awakening.

Locke’s theological understanding of political science goes deeper than the patently flawed Christian nation claim. Fortified by Locke’s understanding of our mutual status as God’s children – the understanding that underlies Locke’s notion of our fundamental equality – evangelicals could again find what Pocock calls “the sacred character of the state” without bothering with the antidisestablishmentarianism. The Deists were wrong: Locke’s concept of equality before God is redemptive. It was after his resurrection, after all, that St. John’s Jesus first announces our equal status as God’s children: “Go to my brothers, and tell them that I am ascending to my Father and your Father, to my God and your God.”

Good reads on natural law, Lockean liberalism, & equality

Walter Lippmann stampA few people recently asked me for some good reads to start them into natural law, Lockean liberalism, and the equality clause. I oblige them here.

The Teaching Company’s Great Courses includes a thoughtful overview on the history and development of natural law theory. Joseph Koterski’s “Natural Law and Human Nature” course comes with a good “course guidebook” that has lots of suggestions for more reading.

One of those suggestions is Paul E. Sigmund’s book Natural Law in Political Thought. Here is the most approachable scholarly book I’ve read on the subject. Like Koterski’s course, Sigmund’s book traces natural law’s development over the centuries.

Sigmund’s book, in turn, mentions Walter Lippmann’s book The Public Philosophy. I’m reading it now. Unlike Koterski and Sigmund, Lippmann was not a scholar but (as Wikipedia puts it) a public intellectual and an amateur philosopher. He wrote The Public Philosophy in 1955, near the end of his reign as probably the twentieth century’s most influential American columnist. Lippmann’s book isn’t a history book; instead, it advocates that America readopt natural law as its public philosophy.

Ruth W. Grant
Ruth W. Grant

Another well-argued piece is political science professor Harry V. Jaffa’s 1987 law review article “What Were the ‘Original Intentions’ of the Framers of the Constitution of the United States?” Jaffa takes issue with his fellow conservatives who reject natural law in favor of strict constructionism. (If you click the above link to that article, be prepared to be patient. It takes a while to load.) Jaffa’s shorter article along those same lines is “The False Prophets of American Conservatism.” If you end up liking Jaffa and want to challenge yourself, treat yourself to what I consider to be the past few decades’ greatest work of American political science, A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War, published in 2000. In it, Jaffa develops the founders’ and Lincoln’s political philosophy and establishes the significance of the equality clause and the natural-law hierarchy it reinforces among God, mankind, and nature. Very slow, difficult, but rewarding reading.  (You can read my Amazon.com customer review of the book here.)

Three good primary sources would be Locke’s Second Treatise on Government, Hamilton, Madison, and Jay’s Federalist Papers, and Lincoln’s writings. Political Writings of John Locke has a long (115 pages) and excellent introduction by David Wootton. The introduction puts Locke’s works in the context of his life and times and explains his works’ appeal to the American revolutionary generation. The Signet Classic version of the Federalist Papers has a much shorter but equally thoughtful introduction, this one by Charles R. Kesler. Written in 1999, the introduction presciently demonstrates how pertinent the Federalist Papers are to us today: “The American Union is threatening to split up into separate confederacies of states, Publius argues, and each state is itself teetering on the brink of tyranny due to the danger of majority faction.” As for Lincoln’s writings, I use Lincoln on Democracy, edited by Mario M. Cuomo and Harold Holzer, and the Holzer-edited version of the Lincoln-Douglas debates. My favorite intellectual biography of Lincoln is the very approachable Abraham Lincoln: Redeemer President by Allen C. Guelzo.

Alexander Rosenthal
Alexander Rosenthal

Two other books I’ve read should not be missed: Alexander S. Rosenthal’s Crown Under Law: Richard Hooker, John Locke, and the Ascent of Modern Constitutionalism and Ruth W. Grant’s John Locke’s Liberalism. The links associated with those titles lead to my extensive reviews of the titles.

Three good steps for finding free or cheap books: (1) showroom Amazon (many would say it’s only fair) using its customer reviews and its “Look Inside” feature where available, or Google Books, to see what you want, (2) look for free e-book downloads on archive.org’s texts sectionOpen Library, or Amazon’s Kindle store and the like (usually books out of copyright) (you can borrow many e-books at these sites, too), and, barring that, (3) shop for used hard-copy books, starting at bookfinder.comAnd three guidelines for buying used books: (1) hardbacks are often way cheaper than paperbacks, (2) older editions are often way cheaper than newer editions, and (3) (contrary to all reason) well-marked books are often way cheaper than “clean” books.

I can’t compile such a digest of political science books as this without acknowledging the work that got me interested in natural law, Lockean liberalism, and the equality clause more than a quarter-century ago: Jaffa’s Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates. I trembled, reading it the first time.